When Power Replaces Authority · Liberty Politics Discussion

When Power Replaces Authority

Israel’s judicial debate is usually framed as a struggle between right and left, between the government and the courts, or between supporters and opponents of judicial reform. But beneath all these disputes lies a far more fundamental question: Who has the authority to exercise power in a state, and from where does that authority come?

This is not a technical question for lawyers. It is a question at the heart of democracy. The state holds the monopoly on legitimate force and must therefore be constrained by law, while the individual stands in the opposite position: he is free to do anything the law does not prohibit, whereas the state may do only what the law authorizes it to do. This is the crucial distinction between power and authority. Power is the ability to do something; authority is the legal right to do it. Once the ability to exercise power becomes proof in itself that the power may lawfully be exercised, the rule of law begins to collapse.

The problem begins even before the courts, in civic education and in a culture of deference. A citizen who does not understand the limits of governmental authority will tend to accept almost any demand from an official, a police officer, an administrative agency or a court, rather than ask the most basic question: Under what law are you doing this? In a free society, the citizen does not need permission in order to be free. The government needs legal authorization in order to restrict him. Holding an official position does not, by itself, create authority, just as the fact that an agency has acted in a certain way for years does not give it powers the legislature never granted it.

The issue becomes concrete in the case of the Second Authority, where, according to the account presented in the discussion, Radio Galei Yisrael was fined 5,000 shekels. When the station’s legal counsel asked for the statutory basis for the fine, no clear provision could be found granting the authority such power. He was then referred to a Supreme Court ruling, but, according to his account, that ruling concerned a different matter and did not supply the required source of authority. The principle is simple: when the law requires explicit authorization, the first question is whether such authorization exists, not how creatively one can interpret the law to manufacture it. Once a court fills the gap and grants an agency power that the legislature did not expressly grant, the legislature is no longer the sole source of legal authority.

This is not merely theoretical. A powerful authority can impose a sanction that a small organization or private citizen cannot afford to fight, even when that citizen is right. Deterrence then comes not from the law but from the imbalance of power. This is precisely why courts matter in protecting the limits of governmental authority, but it also raises an equally important question: What is the proper role of the court itself? According to the view presented in the discussion, the court is not supposed to replace the elected branches or determine which policy it considers most just. Its role is to adjudicate disputes, interpret and apply the law and preserve the rules of the game. When a judge becomes the person who decides what is best for citizens or what policy is best for the country, the judge is no longer merely interpreting law but participating in the creation of policy.

This is also where the distinction between law and charity becomes important. A judge may encourage someone to act beyond the strict requirements of the law, but should not turn such conduct into a legal obligation. Law defines duty; charity goes beyond duty. If the law dictates a particular result, a judge should not replace it with the result he personally considers more moral. Otherwise the boundary between law and judicial discretion disappears, and citizens can no longer know in advance what the law requires of them.

The problem becomes especially clear in the Aharon Barak doctrine associated with the Afurimros ruling, because a contract is, in effect, a law between two people. Two parties agree on a system of rights and obligations, and the legal system is supposed to give that agreement predictability. According to the account presented in the discussion, Section 25 of Israel’s Contracts Law originally placed the language of the contract and the parties’ intentions at the center, whereas Afurimros adopted a broader interpretive approach in which the judge moves from the language of the contract to its surrounding circumstances. The result was a wider field of judicial discretion, where the question was no longer simply what the parties wrote or intended, but what meaning should be assigned to the agreement in its broader context.

The criticism presented is not merely legal but economic. The less predictable a contract becomes, the more the parties must prepare for competing interpretations, legal and insurance costs rise and those costs ultimately reach the public. At the same time, an effect emerges that might be called the “Medusa effect”: legal language becomes so complex that ordinary citizens can no longer understand how a decision was reached and are therefore forced to accept the judge’s interpretation as professional truth beyond their ability to challenge.

The Knesset attempted to limit the impact of Afurimros, but according to the argument presented, the problem was not only the wording of the statute but the interpretation given to it. Even when the legislature sought to clarify its intention, the courts retained substantial room to reinterpret the law. This leads to the central question: If elected representatives establish a rule in legislation, who has the authority to change its operation through interpretation? The issue is therefore not merely what the law says, but who possesses the power to determine what the law means. When there is no explicit authority but there is practical power to impose a result, the uncomfortable answer raised in the discussion is this: there may be power without authority.

Extreme cases are often invoked to justify expanding judicial discretion. What happens if applying the law produces a harsh or unjust result? But a legal system cannot be built around exceptions. If there are cases involving coercion, exploitation or defective consent, the law can address them directly, as contract law already does. There is no need to transform judges into legislators in order to deal with exceptional cases. Otherwise the exception becomes the rule and discretion becomes a substitute for authority.

The problem is not confined to the judiciary. It also concerns the bureaucracy. For decades Israel developed a permanent professional civil service that remained in place as governments changed. According to the argument presented, this created a situation in which elected officials changed while much of the machinery implementing policy remained the same, potentially allowing an independent source of power to develop within the administrative system. This does not mean that every civil servant acts against the government. The deeper problem is that “professionalism” itself can become a source of authority independent of the electorate, raising the fundamental question of who actually governs.

Democracy is not merely the right to vote. It is also the ability of those elected to govern within the law. If a minister cannot direct the machinery for which he is responsible, or if officials can decide that they will not implement policies for which the government was elected, elections risk becoming largely symbolic. The issue is therefore not the existence of a professional civil service but the possibility that the bureaucracy can evolve from an instrument for implementing elected policy into an institution capable of blocking it.

The same principle applies to parliamentary immunity. Immunity is not supposed to be a personal privilege for a member of the Knesset but a mechanism protecting an elected representative’s ability to perform his duties without the judiciary or prosecution being able to remove him from the political arena. When judicial interpretation narrows that protection, a broader question arises about the balance between the branches of government, because if an unelected institution can significantly influence who is allowed to continue serving as an elected representative, the independence of the elected branch is weakened.

The issue becomes even sharper when a court effectively extends the tenure of an administrative body beyond the period established by law, and government officials are then warned that they may face personal liability if they follow the government’s instructions rather than the court’s position. The incentive becomes obvious: the official will follow the side that protects him personally. The government may retain formal authority while the court acquires effective power. That is precisely the difference between authority and power.

Nor can the question of whether every judicial ruling must be obeyed be answered with a slogan. A private citizen cannot simply choose which laws or judgments he finds convenient. But elected officials are themselves part of the system of authority created by law, so when a conflict arises between legislation and judicial interpretation, the proper response is to return to the source of authority and ask who is empowered to decide what. The answer is not rebellion against the courts but a return to the law, to the separation of powers and to each branch’s responsibility to remain within its legal boundaries.

This is why the struggle over Israel’s judicial system cannot be reduced to the composition of the Judicial Selection Committee or to the political identity of individual judges. The deeper question is whether Israel will have a system in which every institution possesses as much power as the law grants it, and no more. If an official exceeds his authority, the responsible minister must act. If a court exceeds its authority, the Knesset must clarify the limits of the law. If a legal adviser blocks an action that the law permits, it must be remembered that legal advice is not sovereignty. Otherwise the law remains on paper while whoever possesses practical power decides what actually happens.

Ultimately, the rule of law does not mean that the judge is the law. It means that the judge is also subject to the law. It does not mean that the official is sovereign but that he is an agent of authority granted to him. It does not mean that the government may do whatever it wishes but that it may act only within the law. And it does not mean that citizens may ignore the state, but that the state must demonstrate the legal source of its authority whenever it seeks to restrict them.

That is the difference between the rule of law and rule through law. Under the rule of law, the law constrains the holder of power. Under rule through law, the holder of power uses the law to achieve the outcome he wants. The difference is between a democracy in which authority comes before power and a system in which power searches for legal justification after the fact.

The real struggle, therefore, is not between the government and the courts and not between right and left. It is between two visions of the state. One holds that the public is sovereign, that elected representatives are empowered to govern and that every institution is bound by the limits established by law. The other allows unelected institutions to accumulate power until their ability to do something becomes, by itself, evidence that they are entitled to do it.

The citizen must know what he is permitted to do, the civil servant must know what he is permitted to do, the minister must know what he is permitted to do and the judge must know what he is permitted to do. Those boundaries are not the enemy of democracy. They are democracy. Once authority comes before power, the law comes before its interpreters and the citizen comes before the governing machinery, the rule of law ceases to be a slogan and becomes reality.

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When Power Replaces Authority